Expert Analyzes the Role of States and Cities in Immigration Regulation

Federal, state and local governments should share responsibility for the creation and enforcement of immigration law, according to Clare Huntington, an associate professor at the University of Colorado Law School.

Huntington, who spoke to Law School students and faculty about the role of states and cities in immigration regulation, compared immigration law to other areas where state and local governments share authority with the federal government. The Immigration Law Program sponsored the event.

“In terms of environmental law and civil rights law, all levels of government have some authority and the question is who gets to exercise it and in which context. Immigration law, at least according to conventional wisdom, is different. Immigration law, we really set apart,” Huntington said. “The question I ask is whether that’s constitutionally mandated. Is that because that’s what the constitution requires, or is that simply the way things are now?”

Huntington, a former attorney-adviser for the Office of Legal Counsel at the U.S. Department of Justice, said the Constitution does not clearly outline who has authority over immigration law — which controls the country’s borders — and alienage law, which applies to noncitizens inside the U.S.

Many argue against local and state government involvement in immigration and alieange law, saying immigration is closely tied to foreign affairs, and individual states could hurt the United States’ relationships with other countries. Huntington argued against that theory, saying other countries with strong national governments such as Canada, Germany and Switzerland give sub-national governments some immigration and alienage law authority. Further, Huntington said state and local governments have a much stronger vested interest in immigration and alienage laws than in foreign affairs.

“Unlike foreign affairs, state and local governments have a tremendous interest [in immigration]. It affects them both positively and negatively,” she said. “Immigration is hugely tied socially, politically and economically to what state and local governments care about. Moreover, even in the foreign affairs context, we’ve allowed state and local governments to have some role. Perhaps state and social governments can act as long as the issue is of state or local concern.”

Huntington also said she believes the Supreme Court decisions often used to assert that immigration law is a federal matter are not being accurately interpreted. Precedent does not clearly designate that immigration and alienage law should only be enacted and enforced nationally, she said.

Though many state and local laws are meant to respond to the perceived negative impact of unauthorized migrants, some communities create laws meant to benefit them, Huntington said. Some states offer in-state tuition to their children, and some municipalities offer identity cards or other benefits.

If state and local governments have a legal right to create and enforce immigration and alienage laws in their own communities, Huntington said the United States must consider whether it has an interest in uniformity, or whether there’s value to experimentation in certain communities.

“The baseline is that immigration is really no different from other areas of public law that are shared among levels of government,” Huntington said. “The only thing that may be different is the level at which the federal government has dominated. That’s not to say that’s constitutionally required. It could just be a matter of history.”